Allowed

Shaji P.P v. the Revenue Divisional Officer

Kerala HC2 Nov 2023WP(C)/5825/2023

Case brief

AI extract

What is this about?

The Court set aside a rejection order of a Form-5 application for removing land from the Paddy Land Data Bank. It directed the Revenue Divisional Officer to reconsider, obtain a KSREC report, and decide based on independent assessment and judicial guidelines within three months.

What did the court decide?

Ext.P7 order set aside; Form-5 application reconsidered with direction to obtain KSREC report; proceedings under Ext.P4 kept in abeyance.

Shaji P.P Vs the Revenue Divisional Officer — Land Acquisition | Kerala HC (2023)

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W.P.(C) No.5825 of 2023 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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THURSDAY, THE 2^ND DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945

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WP(C) NO. 5825 OF 2023

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PETITIONER:

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SHAJI P.P, AGED 45 YEARS S/O PAPPACHAN,RESIDING AT PUNNATHANATHU HOUSE,KURICHIKKARA P.O.,MATTAMPURAM, THRISSUR-, PIN - 680028

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BY ADVS. T.C.SURESH MENON B.DEEPAK

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RESPONDENTS:

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1 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, 1ST FLOOR,CIVIL STATION, CIVIL LINES ROAD,AYYANTHOLE,THRISSUR-, PIN - 680003

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2 THE AGRICULTURAL OFFICER,KRISHI BHAVAN,OLLUKKARA, MANNUTHY P.O.,THRISSUR-, PIN - 680651

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3 THE VILLAGE OFFICER,NETTISSERI VILLAGE OFFICE,NETTISSERI P.O., THRISSUR-, PIN - 680657

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4 THRISSUR CORPORATION,REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR-, PIN - 680001

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BY ADV SANTHOSH P.PODUVAL

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OTHER PRESENT:

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GP - RIYAL DEVASSY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.5825 of 2023 2

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VIJU ABRAHAM, J.

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Dated this the 2^nd day of of November, 2023

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JUDGMENT

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The petitioner has approached this Court

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aggrieved by the issuance of Ext.P7 order, whereby

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the Form-5 application submitted by the petitioner

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has been rejected by the 1^st respondent.

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The petitioner is the owner in possession

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of 0.0445 hectares (approximately 11 cents) of

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land in R.S.No.5/23 (Old Sy.No.604/IP) of

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Nettisseri Village in Thrissur Taluk within the

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jurisdiction of the Thrissur Corporation limits.

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Petitioner submits that the land is pucca

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dry land and in the very adjacent properties are

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also lying in the same. The 4^th respondent Corporation has granted Exts.P1 and P2 building permits. Petitioner constructed a small residential

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house in the 5 cents of the above said property

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and the Corporation declared the building as unauthorised construction and issued proceedings

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W.P.(C) No.5825 of 2023 3

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granting UA number and fixing a huge rate of tax.

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Subsequently, a demolition order was issued as per

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Ext.P4. Thereupon, petitioner submitted an application for regularisation of the construction wherein the 4^th respondent informed the petitioner

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that the property is now lying as Nilam and

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therefore, petitioner has to get necessary orders

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for removing the same from the data bank. Thereupon, petitioner submitted Ext.P5 application under Form 5. Pursuant to the direction issued by this Court in Ext.P6 judgment the application was considered and rejected by Ext.P7. Petitioner

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would submit that a perusal of Ext.P7 would reveal that the application has been rejected solely

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relying on the report of the Agricultural Officer and there is no independent consideration by the 1^st respondent.

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This Court in Salim C.K. and Another v.

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State of Kerala and Others[2017 (1) KHC 394] has held that the Data Bank that was contemplated as per the provisions of the Act was to contain

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W.P.(C) No.5825 of 2023 4

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details only of cultivable paddy land and wetland

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within the area of jurisdiction of LLMC concerned.

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Further in Lalu P.S. v. State of Kerala[2020 (5) KHC 490] this Court has held that the data bank to

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be prepared under the Act is the data bank of the cultivable paddy land existing as on the date of the coming into force of the Rules, i.e., 24.12.2008. In Joy v. Revenue Division Officer/Sub Collector[2021 (1) KLT 433] it was held that it is

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the character and fitness of the land as available on 12.08.2008, that matters, to include or exclude

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a land from the data bank. This court in

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Arthasasthra Ventures (India) LLP v. State of

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Kerala[2022 (4) KLT OnLine 1222] has held that the most relevant aspect while considering Form-5 application is whether the land in question was a paddy land or a wetland when the Act, 2008 came into force and whether the land is fit for paddy cultivation and if the Revenue Divisional Officer was not satisfied with the available materials,

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ought to have resorted to scientific data

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W.P.(C) No.5825 of 2023 5

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including satellite photographs obtained from

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KSREC. This court in Muraleedharan Nair v. Revenue

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Divisional Officer[2023 (4) KLT 270] has held that when the petitioner seeks removal of his land from

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the Data Bank, it will not be sufficient for the

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Revenue Divisional Officer to dismiss the application simply stating that the LLMC has decided not to remove the land from Data Bank. The Revenue Divisional Officer being the competent

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authority, has to independently assess the status of the land and come to a conclusion that removal of the land from Data Bank will adversely affect paddy cultivation in the land in question or in the nearby paddy lands or that it will adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. Further, this Court in Aparna

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Sasi Menon v. Revenue Divisional Officer[2023 (5)

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KLT 432] has held that the predominant factor for consideration while considering the Form-5 application should be whether the land which is

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W.P.(C) No.5825 of 2023 6

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sought to be excluded from Data Bank is one where paddy cultivation is possible and feasible.

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In spite of these categorical declaration by this Court in a catena of judgment as cited above, the application submitted by the petitioner has been rejected solely relying on the decision of the LLMC not to remove the paddy land from the data bank.

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In view of the above, Ext.P7 is set aside

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with a consequential direction to the 1^st respondent to reconsider the Form-5 application submitted by the petitioner. If the petitioner

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submits an application to the Agricultural Officer concerned seeking to obtain KSREC Report paying the prescribed fee within a period of two weeks, the Revenue Divisional Officer shall pass order afresh in the Form-5 application within a further period of three months from the date of receipt of the KSREC Report and take a final decision in the matter after considering the report as well as the relevant factors stipulated in Rule 4 (4f) of the

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W.P.(C) No.5825 of 2023 7

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Kerala Conservation of Paddy Land and Wetland

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Rules, 2008. Petitioner will be free to file

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argument notes incorporating copies of the judgments relied on by him to substantiate his contentions and the 1^st respondent RDO while reconsidering the matter as directed above, shall advert to the findings by this Court in the judgments cited (supra) and also the contentions of the petitioner in the argument notes submitted

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by him and pass final orders in the matters as expeditiously as possible, at any rate, within an outer limit of 3 months from the date of receipt of a copy of this judgment. Till a decision is taken as directed above, further proceedings pursuant to Ext.P4 shall be kept in abeyance.

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The writ petition is disposed of as above.

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sd/- VIJU ABRAHAM JUDGE

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W.P.(C) No.5825 of 2023 8

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APPENDIX OF WP(C) 5825/2023

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PETITIONER'S EXHIBITS

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Exhibit-P1	TRUE COPY OF THE BUILDING PERMIT GRANTED TO THE NEARBY PLOT OWNER BY THE 4TH RESPONDENT, DATED 17.3.32015.
Exhibit-P2	TRUE COPY OF THE BUILDING PERMIT GRANTED TO THE NEARBY PLOT OWNER BY THE 4TH RESPONDENT, DATED 5.10.2015.
Exhibit-P3	TRUE COPY OF THE ORDER NO.OLK2/1064/ 2020 ISSUED BY THE 4TH RESPONDENT, DATED 15.5.2020.
Exhibit-P4	TRUE COPY OF THE DEMOLITION ORDER NO.OLK3/ BA/86/17-18 ISSUED BY THE 4TH RESPONDENT, DATED 1.10.2020.
Exhibit-P5	TRUE COPY OF THE APPLICATION IN FORM NO.5 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 12.7.2021.
Exhibit-P6	TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.27245/2021 ON THE FILE OF THIS HONORABLE COURT, DATED 1.12.2021.
Exhibit-P7	TRUE COPY OF THE ORDER NO.D8-10929/2021 PASSED BY THE 1ST RESPONDENT, DATED 24.1.2023.
Exhibit-P8	TRUE COPY OF PHOTOGRAPHS WHICH DEPICT THE FACTUAL SITUATION, DATED -NIL-

Shaji P.P v. the Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

Shaji P.P v. the Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

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